Lewis v. Pope

• Decision Date: 13 July 1910
• Citation: 68 S.E. 680,86 S.C. 285
• Parties: LEWIS et al. v. POPE et al.
• Court: South Carolina Supreme Court

68 S.E. 680

86 S.C. 285)

LEWIS et al.

v.POPE et al.

Supreme Court of South Carolina.

July 13, 1910.

1. Trial (§ 194^*)—Instructions—Charge as to Matters of Fact.

An instruction that a person cannot live on or occupy one tract of land and establish adverse possession, under color of title, over an adjoining tract by proving that he has cut timber on the adjoining tract and hauled it off for use on the tract on which he lived was properly refused, as violating Const, art. 5, § 26, providing that judges shall not charge juries in respect to matters of fact.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 194.*]

2. Adverse Possession (§ 18*)—Actual Occupancy—Residence.

Actual residence is not essential to the defense of adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 96-98; Dec. Dig. § 18.*]

3. Adverse Possession (§ 13*)—Elements.

Adverse possession as applied to real estate is an actual, visible, and exclusive appropriation of land commenced and continued under a claim of right with the intent to assert the claim against the true owner, and accompanied by such an invasion of the rights of the opposite party as to give him a cause of action.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 65-76; Dec. Dig. § 13.*

For other definitions, see Words and Phrases, vol. 1, pp. 227-236; vol. 8, p. 756S.]

4. Trial (§ 260*)—Refusal of Instructions.

A refusal to charge that a person cannot live on or occupy one tract of land and establish adverse possession, under color of title, over an adjoining tract by proving that he has cut wood or timber on the adjoining tract, for use on the tract on which he lived, is rendered harmless by charging that before one can succeed in holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely, and he cannot succeed in his claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 051-659; Dec. Dig. § 260.*]

5. Adverse Possession (§ 116*) — Instructions—Presumption.

In an action for the possession of land, where defendants show adverse possession by themselves and their ancestors for over 20 years, a request to charge that the mere going on the land while living on another tract and cultivating a part of it for a few years, or occasionally cutting wood on it, is not possession from which it can be presumed that there was a deed was properly refused.

[Ed. Note.—For other cases, see Adverse Possession, Dec. Dig. § 116.*]

6. Adverse Possession (§ 43*)—Continuity of Possession—Tacking Successive Fossions.

To sustain the defense of adverse possession under the statute, the defendant is not allowed to tack his possession to that of the party from whom he claims.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 213-225; Dec. Dig.§ 43.*]

7. Trial (§ 187^2-*)—Instructions—Charges as to Matters of Fact.

A charge that, while the declarations of a person who has been in possession of land may be given in evidence to show under what right he held it, yet the loose declarations of a man in possession cannot prevail against the truth of the case as shown on the trial, was properly refused, as violating Const, art. 5, § 26, providing that judges shall not charge juries in respect to matters of fact.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 187.*]

8. Trial (§ 296*)—Instructions—Construction of Charge as a Whole.

An instruction that the law presumes possession unexplained to be adverse possession, that holding exclusively, and adversely, and openly are the highest acts in the power of the disseisor to indicate his intention, and that those who claim an interest in things must be charged with a knowledge of their status and condition was free from error, where the court also charged that if a plaintiff in an action to recover real property establishes legal title he is presumed to have been in possession within the time required by law, and the occupation of the land by any other person is deemed to have been in subordination to the legal title, and to defeat the legal title the person in possession must show that he has held and possessed the land adversely against such legal title for 10 consecutive years before the commencement of the action.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-718; Dec. Dig. § 296.*]

Appeal from Common Pleas Circuit Court of Spartanburg County; J. W. De Vore, Judge.

Action by R. H. Lewis and others against N. B. Pope and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

The grounds of appeal were as follows: 1. Because his honor, as it is respectfully submitted, erred in refusing to charge the plaintiffs' sixth request, to wit: "A person cannot live on or occupy one tract of land and establish adverse possession, under color of title, over an adjoining tract of land by proving that he has cut wood or timber on such adjoining tract and hauled it off for use on the tract on which he lived." 2. Because his honor erred in refusing to charge plaintiffs' thirteenth request, to wit: "When a person claims that he has acquired title to land by being in possession for 20 years, he must prove such possession of such land for 20 consecutive years. The mere going on the land while living on another tract, and cultivating a part of such land for a few years, or occasionally cutting wood on it, is not such possession from which it can be presumed that he had a deed. In all cases the jury must find the truth from the evidence, and if, as a matter of fact, he had no deed, then they cannot presume that he had such deed." 3. Because his honor erred in refusing to charge all of the eighth request of the plaintiffs, to wit: "Where one establishes a legal title to land the law presumes that he has been in possession of the same within the time fixed by the statute, and such title cannot be defeated by an occupant of such land, unless he proves adverse possession in one or the other of the ways which have been explained to you, and even though it does appear that the occupant has been in possession of the same for 20 years this will not presume a deed from the owner of such land, but before such occupant can defeat the legal title he must establish his adverse possession, either under color of title or by actual possession for 10 consecutive years." 4. Because his honor erred in refusing to charge plaintiffs' eleventh request, to wit: "While the declarations of a person who has been in possession of land may be given in evidence to show under what right he held it, yet I charge you that the loose declarations of a man in possession cannot prevail against the truth of the case, as may be ascertained and proved on the trial of such ease." 5. Because his honor erred in charging the fourth request of the defendants, to wit: "The law presumes possession unexplained to be adverse possession. Holding exclusively, and adversely, and openly, are the highest acts in the power of the disseisor to indicate his intention. Those who claim an interest in things must be charged with a knowledge of their status and condition."

Sanders & De Pass, for appellants.

Stanyarne Wilson and J. B. Atkinson, for respondents.

GARY, A. J. This is an action to recover possession of a tract of land containing about 100 acres. The defendants denied the plaintiffs' title, and set up the defenses of adverse possession, presumption of a grant, estoppel, and laches. The jury rendered a verdict in favor of the defendants, and the plaintiffs appealed upon exceptions which will be reported.

First exception. In order to understand clearly the question presented by this exception, it will be necessary to refer to the testimony of the defendants' witnesses, which is thus summarized by the respondents' attorneys: "In 1869 T. W. Pope, ancestor of defendants, was in possession. His son, N. K. Pope, says he continued in possession till he, N. K. Pope, went West in 1871. The fenced-in portion, some 11 acres, he cultivated and, in winter, pastured; the rest of the place, woodland, he used for firewood and cattle range. N. B. Pope says: He worked in this cultivated, fenced land for his father in 1871. The cattle were pastured there in winter. This continued till 1876, when the family scattered by deaths and marriages, leaving no one but himself with his father. They thereupon discontinued cultivating, and devoted the place to pasture, till three years after the fence law was enacted, about 1884, and then hauled off the rails and built a fence for the cattle, and let that farm grow up. The tract was used in the only other ways possible; clearing land by cutting timber and selling it for wood, sawing and using it for firewood and sningles. This continued until his father's death in 1900. From the time his father went on the place till his death, he used it as his own, just like his other land, claiming it as his own, and no one interfered with his possession. After his death his children continued to use and occupy it, building houses upon it in 1901 and 1903. In 1904 it was divided amongst them by partition, and has since then been occupied and cultivated by those of the family to whom it was set off. During all the while, for 30 years, the plaintiff Lewis lived in that neighborhood. J. D. Cooley says: That his first recollection was T. W. Pope cultivating some eight or ten acres of the place, and getting wood and pine off of it for his own use. He made no difference in the use of this land and his other lands. In 1876 witness helped pile up fodder and put it in an old house there, along with T. W. Pope's children. Simeon Moore says: That in 1888 he cut...